UPDATE: March 15, 2018: In an email to HR Dive, Walmart provided a statement on the jury's verdict.
"We do not believe the jury's verdict is supported by the evidence or legal precedent. We respect Ms. Jacobs, and we have thousands of associates who perform their jobs with reasonable accommodations. We attempted to accommodate her, however the alternatives she requested were not reasonable.
"Providing immunizations is an essential job function for pharmacists at Walmart and leading pharmacy chains across the country, and it's a vital service that local communities depend on. The U.S. Court of Appeals for the Second Circuit covering New York, Connecticut and Vermont ruled two years ago that being able to provide immunizations is a valid essential job function for pharmacists. We are looking at our options, including an appeal."
- A jury has awarded a former Walmart pharmacist with cerebral palsy and multiple sclerosis more than $744,000 in back wages and salaries lost, future wages and salaries lost, and damages after she sued her employer alleging Americans with Disabilities Act (ADA) violations (Lori Jacobs v. Wal-mart Stores, Inc., No. 17-cv-05988 (W.D. Wash. March 6, 2019)). The jury decided Jacobs proved Walmart failed to engage in a good-faith interactive process and that it was able to provide her a reasonable accommodation.
- Jacobs requested an accommodation because she could not administer vaccines to customers, a duty Walmart added to the list of essential job functions for pharmacists during her employment.
- According to court documents, Jacobs proposed Walmart accommodate her by allowing her to administer the vaccines with an injector pen; by scheduling her shifts so that another person who could administer vaccines was always present; or by allowing her to ask that customers return at a time when someone who could vaccinate them was working. Walmart denied Jacobs accommodations and told her they would reassign her to a new position, at which point Jacobs filed suit.
This case illustrates the importance of the ADA's interactive process. While not a hard-and-fast requirement under federal law, courts tend to favor employers that engage in such a process when evaluating employee accommodations. The process begins when an employee makes it known that he or she needs something because of an impairment, David K. Fram, the director of ADA and EEO services for the National Employment Law Institute, previously told HR Dive. And this notice need not come in writing or use the language of the ADA. Once the employee has kicked off the interactive process, it's important that the manager or supervisor act quickly, Fram said.
The process should unfold naturally from there, but employers have been caught up by some common mistakes. Supervisors implementing accommodations must make sure to disclose only information that's absolutely necessary, Job Accommodation Network Principal Consultant Beth Loy previously told HR Dive. "For example, if an employee needs an accessible parking space, co-workers need to know only that this person has a specific space — not why," she said. It's also important that employers document the interactive process thoroughly and devote time and effort — more time and effort than they might to another employee — to the employee requesting an accommodation, Fram said.
Sometimes an employer and employee may not be able to find an accommodation that enables the worker to perform the essential functions of the job without posing the organization an undue hardship — and the ADA allows for that. For example, a federal district court found that Lowe's did not discriminate against a district manager with a disability by denying him permanent light duty for his original position or reassignment to a new position, noting that neither constituted a reasonable accommodation. Employers should note, however, that the "reasonableness" of an accommodation must be determined on a case-by-case basis; not only do individuals' needs and job duties' differ, but courts disagree on that standard as well. Lowe's was litigating its case in the 4th Circuit, which hasn't yet decided whether the ADA requires non-competitive transfers. Other circuits, however, are split on the issue.